RAJESH MISHRA Vs. ESBI TRANSMISSIONS PRIVATE LIMITED

JUDGEMENT

(1.) Heard the learned Advocates for the parties. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 has been directed against the order dated 22 August, 2008 passed by the learned 3rd Metropolitan Magistrate, Kolkata in case No. C/ 23315/2008 (M/s ESBI Transmissions Private Limited ) whereby the learned 3rd Metropolitan Magistrate, Kolkata ordered issuance of process against the accused finding a prima facie case under Sections 500/501 of the Indian Penal Code.

(2.) It is the case of the petitioner/accused that he is working with M/s. Vulcan Technologies Private Limited, a subsidiary of Vulkan Kupplungs, as a Managing Director having its office at Pune, Maharashtra, and the said Vulkan Kupplungs is world leader of T.C. and its spare parts, which are used in marine and industrial application. The opposite party/ complainant runs business of manufacturing various industrial products including Spare Rubber Element, which is a spare part of Coupling and Mr. Samir Bose is the director of the opposite party/complainant. The complainant/opposite party was associated with the brand name of parent company of the petitioner named Vulkan from 1982 to 1985, but as there was dispute between the said Vulkan Kupplungs and the opposite party/complainant due to dispute between them in various Courts of law of Bochum (Germany), a settlement agreement was made between the parties settling all the disputes. M/s. Det Norske Veritas (in short DNV) being a renowned certification institution of international repute issues certificates with regard to standards of various maritime products and spare parts. The opposite party/complainant submitted an application to said DNV on 9th June, 2008, seeking certification of its product, or spare part namely Spare Rubber Element being product identification number ESBI-X 20101000R and in the inspection certificate the opposite party/complainant sought to mention that the aforesaid product is equivalent to "EZ201S", which is the product identification number of the petitioners similar product, suppressing the material fact of the aforesaid settlement agreement and its promise to cease and desist from using in any part of the World the words "Vulkan", "EZ", "EZS", "EZR" in connection with sale/promotion of their products and further undertaking not to use in any way the aforesaid codes to refer and identify the respondent s products. Relying on the representation of the opposite party/ complainant DNV issued certificate dated 1st July, 2008, to the opposite party/complainant in respect of its product bearing product identification NO. " ESBI X 2010 1000R" expressly mentioning that the product of the opposite party/complainant is equivalent to petitioner s product EZ 201S, though the same is not equivalent to the product of the petitioner.

(3.) Having knowledge of issuance of aforesaid certificate dated 1st July, 2008, to the opposite party by DNV, the petitioner sent E-mail dated 9th July, 2008, to Mr. Kamal Kumar, Country Manager, having office at Mumbai, which was exclusively and confidentially for the use of the addressee. In the said Email it was stated by the petitioner that he has no objection for manufacture of rubber element by the opposite party/complainant but they should use only their model number and should not use the model of Valkun. The petitioner referred the opposite party/ complainant as a " spurious manufacturer" therein in a sense that which was not proceeding from the main or true source though the said E-mail was confidential, yet that was forwarded by the office of the DNV to the opposite party/complainant at Kolkata on 10th July, 2008, without knowledge and authority of the petitioner. The said DNV conducted investigation into the complaint of the petitioner and vide E-mail dated 8th August, 2008 informed the petitioner that the certificate issued by it to the opposite party/complainant has been withdrawn as it was misrepresented. The opposite party/ complainant on 14th August , 2008 filed a frivolous criminal private complaint as an act of vengeance against the petitioner without sending any letter or legal notice with a mala fide intention to harass the Pune based petitioner and to abuse the judicial proceedings of this Court out of business rivalry against the petitioner. On the basis of the said complaint learned Metropolitan Magistrate took cognizance and on the basis of the copy of summons from the Court of learned 3rd Metropolitan Magistrate at Kolkata with the allegation of offence of defamation under Sections 500 / 501 of the Indian Penal Code, 1860, the petitioner has appeared before the Court concerned on 12th September, 2008. The opposite party/ complainant also instituted a civil suit on the same cause of action before the Hon ble High Court seeking damages of Rs. 50,00,00,000.